No. 10. See 19 Vict. 88. tion," ante, p. 367. 15 VICTORIA, Dublin or Edinburgh of not less than eight years standing. That such judges shall be appointed by Her Majesty's letters patent: And the salaries of such judges shall be paid to each of them so 33 39, "Constitu- long as their commissions shall remain in force respectively: And it shall be lawful for the Lieutenant-Governor of the said colony to appoint such judge or judges until the pleasure of Her Majesty be known: Provided that until such appointment the resident judge of the Supreme Court of New South Wales for the district of Port Phillip shall exercise all the jurisdiction power and authorities of a judge of the Supreme Court of the colony of Victoria. Proviso. Chief Justice. Removal of judges. Judges not to hold any other 4. That one of the said judges shall be styled "The Chief Justice of the Supreme Court of the colony of Victoria," and until Her Majesty's pleasure be known he shall have rank and precedence above and before all persons whomsoever in the said colony of Victoria, excepting the Governor and Lieutenant-Governor thereof, and except all such persons as by law or usage take place in England before the Lord Chief Justice of the Court of Queen's Bench. 5. That it shall be lawful for the Lieutenant-Governor of the said colony, with the advice of the Executive Council thereof, to suspend from his office until the pleasure of Her Majesty be known any judge of the said court who shall be wilfully absent from the said colony without a reasonable cause to be allowed by the said Lieutenant-Governor and Executive Council: And also any judge who shall become incapable or who shall neglect to perform the duties of his office or who shall otherwise misbehave therein: And if any judge of the said court shall die or resign his office, or by reason of suspension or in consequence of sickness leave of absence or any other temporary cause be unable to perform the duties of his office, it shall be lawful for the said Lieutenant-Governor with the advice of the said Executive Council, to appoint some other fit and proper person qualified as hereinbefore required to perform the duties of such judge until the pleasure of Her Majesty be known: And such person so to be appointed shall possess all the powers and privileges and perform all the duties of the judge in whose place he may be so appointed. 6. That no judge of the said court shall be capable of accepting place of profit. taking or performing the duties of any other office or place of profit or emolument within the said colony of Victoria, excepting such office as may be granted to such judge by Her Majesty's sign manual or under the great seal of the High Court of Admiralty of England; and any such acceptance taking or performance of the duties of any such other office shall be deemed in law an avoidance of his office of judge, and his office and commission shall be thereby in fact superseded and his salary thereupon cease. Officers of the court. 7. That the said court shall have a master in equity who shall be a practising barrister of England or Ireland or advocate of Scotland of not less than five years standing, or a practising barrister of the said court not previously admitted in any of the superior courts of Westminister Dublin or Edinburgh of not less than six years standing; a prothonotary, a registrar and keeper of the records, and such and so many other officers as to the judge or judges for the time being of the said court shall appear to be necessary for the No. 10. administration of justice and the due execution of all the powers 15 VICTORIA, and authorities of the said court: And such master registrar prothonotary keeper and other officers shall respectively draw up prepare and settle all such and the like orders rules decrees reports and proceedings as are usually drawn up prepared and settled by persons holding similar offices in the superior courts of law and equity in Westminster without any charge whatsoever for so doing: And the appointment of every such person to any such office as is herein before expressly named shall be by letters patent, and shall be made during pleasure, and in the first instance and until such letters patent shall issue such appointment shall be made by the LieutenantGovernor of the said colony until the pleasure of Her Majesty be known: And all persons who may be appointed to any other office in the said court than those hereinbefore particularly enumerated shall be so appointed by the Lieutenant-Governor of the said colony: And no new office shall be created in the said court unless the judge or judges thereof shall certify by writing under his or their hand or hands to the said Lieutenant-Governor that such new office is necessary: Provided that until such appointments be made respectively the master in equity registrar and other officers of the Supreme Court of New South Wales for the district of Port Phillip, shall exercise the like powers and authorities and discharge the like duties in the Supreme Court in the colony of Victoria as were by them severally and respectively exercised and discharged in the Supreme Court of New South Wales for the district of Port Phillip up to the time of the commencement of this Act. present admitted 8. That every barrister and every attorney solicitor and proctor Barristers and of the Supreme Court of New South Wales for the district of Port attorneys at Phillip may lawfully practise in the Supreme or other courts of the to continue &c. colony of Victoria in the character in which he has been admitted, without its being necessary for him to make application to be admitted to practise in such supreme or other courts. the colony of to have a seal. terfeiting seal or 9. That the said Supreme Court of the colony of Victoria shall Supreme Court of be a court of record, and shall have and use as occasion may require Victoria to be a a seal bearing an impression of the royal arms of England having court of record, inscribed on a label thereon the words "The Seal of the Supreme Court of the colony of Victoria;" and such seal shall be delivered by the Lieutenant-Governor of the said colony to and be kept in the custody of the chief justice of the said court: And any person who Forging or counshall forge the seal or any process document or writing of or issuing from the said court or any copy thereof, or who shall serve or enforce court felony. any such forged process document writing or copy knowing the same to be forged shall be guilty of felony, and being convicted thereof shall be liable to be sentenced at the discretion of the judge presiding at the trial, to be worked on the roads of the said colony for any period not less than five years and not exceeding ten years; or to be imprisoned for any period not exceeding three years. 10-13. [Repealed by 38 Vict. No. 502 s. 1, “Judicature,” ante, p. 1146.] process of the diction. 14. That the said court shall have equitable jurisdiction within Equitable juristhe said colony of Victoria and its dependencies, and such power and authority to do exercise and perform all acts matters and things VOL. III. 2 P No. 10. 15 VICTORIA, necessary for the due execution of such equitable jurisdiction as is possessed by the Lord High Chancellor of England in the exercise of similar jurisdiction within the realm of England); and also to do all such other acts matters and things as can and may be done by the said Lord High Chancellor within the realm of England in the exercise of the common law jurisdiction to him belonging, and to appoint guardians and committees of the persons and estates of infants and of natural born fools lunatics and persons deprived of understanding and reason by the act of God and unable to govern themselves or their estates; and for that purpose to inquire into hear and determine by inspection of the person the subject of such enquiry, or by examination on oath, or otherwise of the party in whose custody or charge such person may be, or of any other person or persons or by such other ways and means by which the truth may be best discovered; and to act in all cases whatsoever as fully and amply to all intents and purposes as the said Lord High Chancellor or the grantee from the Crown of the persons and estates of infants and lunatics natural born fools and persons deprived of understanding as aforesaid may now lawfully do. Ecclesiastical jurisdiction. 15. That the said court shall have ecclesiastical jurisdiction© within the said colony of Victoria and its dependencies, and shall have power and authority to grant probate under its seal of the last will of any person who shall die leaving personal effects within the said colony and to commit letters of administration under its seal of all the personal effects whatsoever within the said colony of any person who shall die intestate, and to commit letters of administration under its seal with the will annexed of all the personal effects whatsoever within the said colony of any person who shall have made a will without having named an executor thereof or without having named an executor thereof resident within the said colony or where the executor being duly cited shall not appear and sue forth probate thereof, with reservation nevertheless in any of the two lastmentioned cases to revoke such letters of administration and to grant probate of the said will to the executor therein named when he shall duly appear and sue forth such probate: And such letters of administration shall be committed by the said court to any person whether of kin to or a creditor of the person so dying as aforesaid or not as to the said court shall seem meet: And in every case in which letters of administration are granted by the said court it shall have power and authority to sequestrate all the personal effects whatsoever within the said colony of the person so dying as aforesaid in cases allowed by law as the same is and may be now used in the province of Canterbury: And the said court shall have power and authority to require hear examine and allow and if necessary to disallow and (a) This section does not confer that power on the judges of this court which the Lord Chancellor of England and the Master of the Rolls possess only by virtue of the statute law. Judges here possess their power under similar authority to that which the Lord Chancellor of England exercises in equity and at common law, but not the power given by express statute to the Lord Chancellor.-In re Hunter, A.R., 7 & 8 Sept. 1859. (b) For some cases in which the court has exercised this jurisdiction over infants, see In re Hunter, ubi sup.; In re Sherry, V.L.T., 69; In re Pennington, 1 V.L.R. (Eq.), 97. (c) The Supreme Court, in its ecclesiastical branch, has jurisdiction to revoke its own regularly-made orders for probate.—In re Pyke, 1 W. & W. (I. E. & M.), 20. No. 10. reject the accounts of the persons to whom probates may be granted 15 VICTORIA, and letters of administration committed in such manner and form and as fully and amply to all intents and purposes whatsoever as may now be done in the province aforesaid, subject nevertheless to such orders and directions as may be made by the said court either generally as applicable to all cases or specially with reference to any case in particular or to such rules of court as may be made as hereinafter provided. orders for ad ceased persons. 16. That it shall be lawful for the said court to make all such Court may make orders as may be necessary for the due administration(a) of the assets ministration of of any such estate to all persons entitled thereunto, and also for the effects of depayment out of such assets to the person administering the same of any costs charges and expenses which may have been lawfully incurred by them, and also such commission or per centage as shall be just and reasonable for their pains and trouble therein): And if any such executor or administrator shall neglect to pass his accounts or to pay deposit or dispose of the goods chattels and credits belonging to the estate of any deceased person at the time and in the manner directed, it shall be lawful for the said court, on the application of any person aggrieved by such neglect, to order and direct that such executor or administrator shall pay interest at a rate not exceeding eight pounds per centum per annum for such sums of money as from time to time shall have been in his hands and the costs occasioned by the application. 17 & 18. [Repealed by 38 Vict. No. 502 s. 1, "Judicature," ante, p. 1146.] (a) This section does not confer upon the court jurisdiction to determine matters of fact arising under the administration of the assets of an intestate. In the goods of Holdsworth, 2 W. & W. (I. E. & M.), 113. (b) This power, authorising the allowance of commission to executors or administrators, will not be acted upon unless under special circumstances justifying a departure from the general rule of the court. The long practice of the court, in not doing a thing which it had power to do, should have the effect of a law against doing it, unless under special and exceptional circumstances.-In the will of Hawkins, 3 W. W. & a'B. (I. E. & M.), 73. Executors, in the absence of any provision in the will, claimed a commission out of their testator's estate. (1.) Under an alleged parol agreement with the testator before his death; (2.) under an alleged bargain, before taking out probate. with several of the persons interested under the will. Held, as to (1), that such an agreement was within the "Statute of Frauds," and must be in writing; and if not mentioned in the will, would be contrary to the "Wills Act," and inoperative; and, as to (2), that such bargains should be discountenanced, as contrary to public policy, but, nevertheless, such a bargain is a ground why remuneration should be given under this section.—Carter v. Murphy, 6 W. W. & a'B. (Eq.), 166. The court has jurisdiction, under this section, to grant such commission in any case. The dis cretion is one properly exercisable by the court, and not in the Master's office; and, as an exercise of discretion by the primary judge, the allowance of such commission will not, in any case, be reviewed on appeal.-Chadwick v. Bennett, 1 V.R. (Eq.), 109. A testator domiciled in New South Wales appointed an executor resident in Victoria, and left large personal estate in both colonies. By the rules of court in New South Wales, executors are allowed a commission. On an ex parte application by the executor, an order was made allowing him the same rate of commission on the personalty in Victoria as was allowed in New South Wales, but without prejudice to the rights of the persons interested.-In re Chadwick's Estate, ex parte Bennett, 2 W. W. & a'B. (I. E. & M.), 50. Although the court has the power to give commission to an executor, testators may be assumed to have made their wills without reference to its exercise. The zealous and judicious conduct of an executor is not sufficient ground for giving commission. Commission refused to an executor who had so acted. Guardian of an illegitimate child, nominated by the father's will, appointed guardian of person and estate by the court without reference, and allowed commission on receipt of rents.-Nixon v. Goldspink, 1 V.R. (Eq.), 92; 1 A.J.R., 56. But see 36 Vict. No. 427 s. 25, "Administration (Deceased Persons' Estates)," ante, p. 21, and cases there cited. 15 VICTORIA, No. 10. in vacation. 19. That every judge of the said Supreme Court of the colony of Victoria shall have power in vacation, if under the special cirPower of judge cumstances of the case he shall see fit, to make all such orders and grant all such writs as can only under ordinary circumstances be made or granted by the court; and every such order and writ shall have the same force and effect as a rule of the said court without the necessity for any further motion or order of the said court: Provided that every such order or writ so made shall be liable to be set aside on application to be made to the said court by motion on notice at any time within the first four days of the next ensuing term.(a) Judgment of chief justice or Judgment of court if two judges differ. 20. That if at any time there shall be only two judges of the of senior judge. said court and a difference of opinion shall arise between them respecting the judgment or decision to be given, or decree or order to be made by them or the said court upon any subject matter or proceeding civil criminal relating to affairs ecclesiastical or otherwise brought before them or the said court, the judgment decision decree or order of the chief justice or of the senior judge as the case may be shall be the judgment decision decree or order of the said Sheriff may sell property without taking out an auctioneer's license. Sheriff to execute deed of bargain chaser. court. 21-23. [Repealed by 19 Vict. No. 13 s. 6, "Supreme Court (Amendment)," post, p. 2445.] 24. [Repealed by 38 Vict. No. 502 s. 1, “Judicature,” ante, p. 1146.] 25. [Repealed by 19 Vict. No. 19 s. 176.] 26. That it shall be lawful for the said sheriff by himself or his deputy to sell by auction all property of whatever nature which may be taken by him in execution without having taken out an auctioneer's license, anything in any law now in force to the contrary notwithstanding. 27. That in case of any sale by the said sheriff by himself or and sale to pur- his deputy of the right title and interest of such person of to or in any lands, the said sheriff is hereby required to execute a proper deed of bargain and sale of the right title and interest of such person to the purchaser thereof. 28. [Repealed by 19 Vict. No. 19 s. 264.] (a) A judge's order under this section must purport to be made under it, and show that the judge intended to exercise the statutable jurisdiction. In re Brewer, ex parte Baker, 2 W. & W. (L.), 136. Under this section an order cannot be made absolute in the first instance for the issue of a writ of prohibition.-Scott v. Riddock, 2 W. & W. (L.), 138. The proper course for a party seeking an order or writ in vacation under this section is to obtain a judge's summons, founded on proper affidavits, calling on the opposite party to show cause in vacation before some judge why such order or writ should not issue; and, on the return of the summons, the judge either dismisses it or makes absolute the order. The act of the judge in such matters in vacation is the act of the court, and he has power to hear and finally determine the matter by such order as he thinks fit to make, subject to be set aside in term.-In re Brewer, ex parte Baker, ubi sup. A rule for prohibition may be obtained, under this section, from a judge hearing common law business in chambers in vacation, during the sitting of a judge in the equity jurisdiction.Dennis v. Vivian, 1 W. W. & a'B. (L.), 201. An order nisi for a writ of prohibition made in chambers in vacation should be made returnable in vacation also.-Reg. v. Strutt, ex parte Chatty, 4 A.J.R., 73. A judge in chambers cannot in vacation grant a rule nisi returnable in term for a writ of certiorari; the old practice, though altered as to mandamus and prohibition, remains unaltered as to certiorari.-Reg. v. McIntyre, 4 W. W. & a’B. (L.), 42; followed in Reg. v. Pohlman, ex parte Thomson, 4 A.J.R., 154. |